Dutch courtroom set-up: guilty by positioning

I would doubt that anyone is looking forward to seeing a courtroom from the inside, especially not as a suspect. What if you were not only charged with a serious crime, but you were also forced to sit center-stage, alone? Singled out to be bullied by the prosecution (and judges) without being able to unequivocally rely on your own lawyer. Welcome to a Dutch courtroom.

Figure 1 – suspect center-stage in Dutch courtroom

A few things catch the eye from this overhead shot of a Dutch courtroom in Figure 1. First of all, the suspect (center Figure 1) is physically inhibited from directly communicating with his lawyer (bottom right Figure 1) during the proceedings. In a few cases the lawyer is allowed to sit directly next to the suspect (Figure 2), but this is not the norm.

Figure 2 – Lawyer sitting next to suspect, but still center-stage.

The second noteworthy point is the position of the prosecutor (#9 in Figure 4 and respective position in Figures 1-3). (S)he sits directly next to the judge(s) (#10 in Figure 4 and respective position in Figures 1-3). Not only do they sit next to each other, they both sit on an elevation compared to everyone else (except the court’s clerk (#11 in Figure 4). In addition, both the judge(s) and the prosecutor enter the courtroom from a private, yet different door directly onto the platform. Again, different from everyone else. This means that the perceived position of the prosecutor is much closer that of a judge compared to defendant + lawyer. Sure, the desk of the prosecutor is separated from the desk of the judge, but very often the design of the desks resemble a single object rather than two separate powers. This strengthens the perception that a prosecutor is an equal or almost an equal to a judge.

Figure 3 – a courtroom in Arnhem, the Netherlands

The names used in the Dutch legal system confirms this. A prosecutor is a standing magistrate, whereas a judge is a sitting magistrate. And all the standing magistrate has to do is convince the sitting magistrate that the presented case is worthy of a conviction. There is no provision in Dutch law that states a conviction has to be based on “guilty as charged beyond reasonable doubt”. Of course, it is more easy to be convinced by a story told by a someone who followed the same eduction, as all Dutch judges and prosecutors have to complete an additional six years of training following law school. It is not at the end of these six years they have to make a final decision which of the two professions they prefer. A recent change (January 1st, 2014) in law now demands that the two studies are officially different, but it will take at least six years before the first newly trained judges and prosecutors will enter the courtroom. It will take many more years before these new graduates will outnumber those trained in the old system. Nevertheless, their offices will remain in the same building.

Figure 4 – Graphical representation of where which party resides in a Dutch courtroom. Most important actors: #7 suspect, #8 lawyer, #9 prosecutor, #10: judge(s), and #12 witness(es).

It is remarkable to see that the suspect or defendant is separated from his/her lawyer. This process starts even before a case is brought to court. During a police interrogation a suspect has a right to a lawyer, but (s)he does not have the right for the lawyer to be present during the interrogation. Subsequently, the police writes up a summary of the interrogation signed by the suspect and interrogator (proces verbaal) and the prosecutor will decide to prosecute based on this summary. Once a prosectuor decides to proceed, the suspect/defendant remains on its own. The prosecutor can request an examining judge to allow for the defendant to remain incarcerated, a request rarely denied. This often means that the defendant is only allowed to communicate with his/her lawyer. This pre-trial incarnation can last up to 111 days (in 2011 Ybo Buruma claimed that more people were awaiting trail behind bars than there were people behind bars because of convictions (Geen blad voor de mond, Uitgeverij Bert Bakker, p 137)). Once court day comes, the defendant is once again separated from his/her lawyer in the courtroom. Depending on the courtroom, the lawyer might be even be sitting diagonally behind the defendant. If the judge address the defendant, the lawyer would not be in a position to advise the defendant. If the lawyer is addressing the court, the defendant would not be in a position to correct or supplement his own defense as it happens. When the prosecutor addresses the court, the lawyer and the defendant would not be in a position to briefly discuss this. Although none if this might be necessary, by even disallowing the options, a lob-sided situation is created. Not only is there the optical perception that the prosecutor and judges seem united behind a single elevated desk, the defendant does not have all the possible means to properly defend himself/herself. Add to the equation that a prosecutor only has to convince the judge and a terribly lob-sided situation is at hand.

A notable actor is missing in the courtroom. Without this actor, no crime would ever be committed, as any crime always consists of three actors: 1) law defining what is a crime, 2) a perpetrator and 3) a victim. The victim holds no official place in a Dutch courtroom and is not expected to be an active participant. Even if the victim could be deemed a valuable eyewitness, it is not uncommon that the judge will base the eyewitness account solely on the police-report (proces verbaal) as presented by the prosecutor. Since January 1st, 2012 the victim has the right to voice the impact the crime had on him/her, but they are not allowed to address the suspect or presented evidence. This new role for the victim has not been received without criticism, especially not by the judges. A common held believe under Dutch judges is that victims of crimes are emotional and only care about retaliation and compensation. The latter opinion is fed by the high compensations rewarded in US civil courts, but Dutch law itself does not allow for exuberant compensations, making this opinion rather silly. Also the emotional argument holds little value, as I would find it rather absurd to think that the defendant would be apathetic or emotionless about being prosecuted. Although I have never been prosecutes, I would think I would be rather emotional if it would ever occur to me.

If the courtroom set-up would focus the attention on the defendant as if (s)he was guilty just by sitting center-stage and the prosecutor and judges looking down upon the defendant, what is the conviction rate in the Netherlands?

Not surprisingly, it is rather high. In the late 1970s around 97% of all presented cases resulted in a conviction. The number has been dwindling a little, but is still above 90%. This high number either means that the prosecutor is doing a remarkable job, or there are other contributing factors. In the case of Japan, which also has a high conviction rate, a cultural factor can be assigned: an eagerness to confess due to social pressure. In the Netherlands one factor is how the legal system is designed. The prosecutor has the power to decide if a case is going to be presented to a judge. This means that the prosecutor can select for only those cases that have a very high likelihood for a conviction. Although this does explain the high conviction rate, it does not explain why this number has gone down in the last three decades. One explanation can be found in a recent change in law that demands judges to motivate their conclusions, especially if it deviates from the explicitly given arguments by either the prosecution or defendants. The demand for writing up how a conclusion was made leads to more critical thinking by the judges.

To improve the position of the defendant and thus create a more equal and thus just prosecution, I would propose a system similar to the Swedish courtroom (Figure 5), where the defendant can discuss with his/her lawyer at any time, and the prosecutor is at equal elevation to the defendant (and not called a standing magistrate). The case itself has to be made in front of the judges by either party and the conviction needs to be based on the principle of “guilty beyond a reasonable doubt” and aided by clear described motivations.

Figure 5 – Swedish (appeal) courtroom

As it stands now in the Netherlands, the suspect or defendant sits apart from his/her lawyer. The judges and prosecutor look down on the defendant. This is visible for everyone in the courtroom, including the press. This reminds me of cases where bullies single-out someone to bully. How can a bystander misunderstand who the bullied person is? Why would that person be bullied in the first place? How can someone be found innocent when charged with a crime? Or to put it in Dutch expression: “where there’s smoke, there’s fire“. Where Japan suffers from false confessions, Dutch people love their expressions to the point where they are used as common knowledge. Will evidence be as critically reviewed if someone is singled out, especially when it is presented by your buddy from your post-law-school school? I doubt it. Singling someone out always changes how people perceive that person. The singling out already happened when someone is charged. Why bother aggravating the situation by putting this person center-stage, alone? The physical separation of an individual emphasizes the notion of “where there’s smoke, there’s fire”. I would therefore argue that the current Dutch courtroom convicts someone just by way the courtroom itself is set-up. Guilty by positioning.